Calendar Date: May 13, 2009
Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered April 16, 2009 in Washington County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Following his 1994 conviction of murder in the second degree, petitioner was sentenced to 25 years to life in prison. His conviction was subsequently affirmed on appeal (People v Spaulding, 222 AD2d 312 , lv denied 88 NY2d 942 ). Thereafter, petitioner made numerous unsuccessful applications for habeas corpus relief and CPL article 440 motions. The denial of petitioner's fourth application for habeas corpus relief was upheld by this Court on appeal (People ex rel. Spaulding v Napoli, 50 AD3d 1330, 1331 [2008). The instant application is the fifth time petitioner has sought habeas corpus relief. Supreme Court denied the application without a hearing and petitioner now appeals.
We affirm. Inasmuch as petitioner's claims could have been raised in his direct appeal or CPL article 440 motions, habeas corpus relief is unavailable, even though his claim pertaining to the validity of the indictment is jurisdictional in nature (see People ex rel. Howard v Rock, 61 AD3d 1230, 1230 ; People ex rel. Moore v Connolly, 56 AD3d 847, 848 , lv denied 12 NY3d 701 ). In any event, we addressed this jurisdictional claim in our prior decision denying petitioner's fourth application for habeas corpus relief (People ex rel. Spaulding v Napoli, 50 AD3d at 1331) and, therefore, collateral estoppel precludes petitioner from relitigating it (see Matter of LaRocco v Goord, 43 AD3d 500, 500 ). As for the other claims raised by petitioner in the instant proceeding, even if we were to find them to have merit, petitioner would not be entitled to immediate release from prison (see People ex rel. Funches v Walsh, 48 AD3d 849, 849 , lv denied 10 NY3d 707 ; People ex rel. Washington v Walsh, 43 AD3d 1217, 1217 , lv denied 9 NY3d 816 ). Accordingly, Supreme Court properly denied petitioner's application.
Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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